Critics say Mass. Open Meeting Law lacks teeth

Editor’s note: First of a series, in the spirit of Sunshine Week, examining Open Meeting Law complaints in Greater Taunton four years after an overhaul of Massachusetts’ Sunshine Law.

Out of nine unique Open Meeting Law complaints filed against municipal boards in the Taunton area since 2010 — including two in Taunton, five in Rehoboth and two in Dighton — five resulted in rulings by the Massachusetts attorney general’s office that the boards were not following the law.

But critics say that the reprimands do little to deter public officials from breaking the Open Meeting Law, which is intended to ensure that public business is not done secretly.

Violations in the Taunton area confirmed by the attorney general’s office involve inaccurate meeting minutes recorded by the boards; failure to properly notify the public of meetings; improper communication between board members; and a failure to abide by the rules surrounding executive, or closed, sessions that are only allowed by state law for a specific, set of purposes, such as discussing the reputation of a public employee or conducting strategy sessions for collective bargaining or contract negotiations.

However, none of these five local cases resulted in any significant punishment. Instead, the public boards were warned not to do it again. The office of Martha Coakley, who has been attorney general throughout the years in question, issued a similarly worded reprimand in most of the Taunton area cases, ordering “immediate and future compliance with the Open Meeting Law.”

The Patriot Ledger of Quincy looked at more than 500 Open Meeting Law complaints ­— the bulk of them from small towns — filed with the state attorney general’s office since the office took over enforcement of the law in 2010. According to records of the filings and consequent rulings, the AG’s office found public boards had violated the law in 221 cases.

The Ledger review showed that if public boards shut out the public when they shouldn’t, or deliberated through email, they might have to take a refresher course in the state’s Open Meeting Law. And if they deliberately skirt the law that’s intended to ensure the public’s business is done in public, they could face a $1,000 fine. But that almost never happens.

Based on the records 221 cases found in violation of the Open Meeting Law, the AG only ordered fines in three cases. Most others received warnings, even in cases of what the office deemed to be serious violations of the public’s right to know.

Open government advocates say that illustrates their criticism that four years after an overhaul, Massachusetts’ “sunshine law” remains among the weakest in the country.

“Effectively, there’s no stick in the law” to make boards comply, said Walter Robinson, a journalism professor at Northeastern University and director of the university’s First Amendment Center. “There’s no downside for public officials to violating the Open Meeting Law. As a result, public officials can screw the public any time they want.”

Massachusetts adopted its first Open Meeting Law in 1958. The law requires public bodies like boards of selectmen, town councils and school committees to hold meetings in public unless they’re discussing topics that fall under a strict set of exemptions, like bargaining with unions and ongoing litigation. Boards must also post notices for public meetings and agendas, including lists of what they plan to talk about.

The state Legislature itself is exempt from the law.

Lawmakers updated the statute in 2009, moving responsibility for enforcement from the local district attorneys to the attorney general beginning in July 2010. The rationale was to provide more consistent enforcement and wider education.

But critics say the reform weakened the law by allowing fines only in cases where the board intentionally violated the law. The previous law did not have that requirement.

Cases in the Taunton area have shown that local governmental leaders sometimes misinterpret the intentions of the Open Meeting Law in conducting serious town matters, including a Rehoboth case that resulted in three separate ballot measures to change town bylaws.

In April and March of 2011, three Rehoboth residents filed Open Meeting Law complaints with the Massachusetts attorney general’s office charging that selectmen invoked an “emergency meeting” for the sole purpose of placing three non-binding questions on a town election ballot that year. The Board of Selectmen posted public notice of the meeting an hour and 20 minutes before the meeting took place at noon on Feb. 28, instead of 48 hours before, typically required by the Open Meeting Law, according to the attorney general’s office findings.

The municipal election was held on April 4, 2011, and the non-binding questions regarding increasing the size of the Board of Selectmen and requiring CORI information for town officials were approved by the voters, but a third question regarding recall procedures was defeated.

While the non-binding questions were similar to three voted on at Town Meeting the previous fall — the first passed, the rest rejected — when it got to the time of spring elections, the town clerk was concerned whether they could get the articles printed on the ballot in time. According to the attorney general’s findings, then-Selectman Kenneth Foley said he wanted to hold an emergency meeting to vote on the questions to ensure that they were submitted by the printing deadline.

According to the investigation, Foley said later, “he felt this was an emergency because the board could not guarantee that the clerk would accept the ballot questions” during the following Monday’s selectmen meeting. Donald Leffort, the other acting selectmen at the time, stated that “the consequence of inaction would have been to wait another year to put the questions on the (t)own election ballot.”

Coakley’s office said that while the Board of Selectmen believed the matter needed immediate action, it was not an “appropriate emergency purpose” under the Open Meeting Law, which states that such an impromptu meeting can only happen when there is a “sudden, generally unexpected occurrence or set of circumstances.” However, Foley admitted to the attorney general’s office that the ballot questions “had in fact been discussed at previous meetings of the Board.”

Here, neither the filing deadline nor the board’s decision to place the questions on the ballot arose suddenly or unexpectedly, the attorney general’s report on the case said. The report acknowledged that selectmen were originally given a wrong ballot printing deadline by the town clerk, albeit a deadline that never changed, but only in the board’s awareness of it.

The AG’s findings concluded that even if there was a true emergency, selectmen were required to tell the public as soon as they made a decision to hold the emergency meeting. But in this case, the Rehoboth selectmen actually made a decision to hold the meeting three days prior, without posting public notice until 80 minutes before the meeting, the report said.

“For these reasons, we find that the Board did not have a lawful reason to hold an emergency meeting,” the report concluded.

But when it came down to any punishment for their misapplication of the Open Meeting Law’s emergency meeting provision, there was none.

“As for remedy, the election has already occurred,” wrote Jonathan Sclarsic, assistant attorney general, in the Feb. 9, 2012, findings on the case. “Thus, it is impossible for us to order the removal of the questions from the ballot, as the complainants requested. Given our limited options, we ordered the Board’s immediate and future compliance with the Open Meeting law, and caution that future similar violations may result in nullification of any action taken at the relevant meeting, and may be considered evidence of intent to violate the law.

“Because we believe the Board was familiar with the law’s requirements but applied those requirements incorrectly in novel circumstances, we do not order additional training on the Open Meeting Law,” Sclarsic added.

Also among the findings in the Patriot Ledger’s review, the attorney general’s office found “serious” violations in cases involving the Sterling Personnel Board and the Southeastern Regional Planning and Economic Development District Board of Commissioners in 2013, both involving holding closed-door sessions to discuss complaints against an employee without notifying the employee. In both cases, the office warned the boards to comply with the law in the future and do additional training on the law, but stopped there because the boards had taken steps to fix the violations on their own.

Statewide, some of the most frequent violations among the 221 identified include boards sharing personal opinions on public matters that came before them by email, not keeping or releasing meeting minutes, failing to properly post meetings and violating the rules for going into a so-called executive session outside of public view.

Attorney General Martha Coakley’s office declined a request for an interview with her. Spokeswoman Emalie Gainey said in a statement that the office has made enforcement a priority.

“Our office assumed enforcement of the law in 2010 and we believe that since then, our efforts have helped promote the key objectives of the Open Meeting Law — good governance and transparency,” Gainey said.

Defenders of the current law include the Massachusetts Municipal Association and the Massachusetts Municipal Lawyers Association who say most of the violations are minor and due to misunderstandings of the law by well-meaning public servants.

“To fine people who are trying to do the public’s business when they make a de minimis error of that nature is overboard and would be counter productive to encouraging public participation,” said James Lampke, executive director of the lawyer’s association and Hull’s town attorney.

But some residents who have gone through the complaint process say it’s just the opposite — that a weak Open Meeting Law makes the public less likely to speak up against potential violations.

“They (the attorney general’s office) have no backbone at all to go after people,” said Robert Belbin, of Carver, who’s filed numerous complaints. “If you see something wrong, you’ve got to stand up and say something.”